The Discovery Update E-Letter Articles

15Oct2018

The GDPR: More a Collaboration Opportunity than a Data Hindrance?

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By Zach Warren, LegalTech News Editor-in-Chief The GDPR was front and center at the “International e-Discovery and Data Protection” session of Relativity Fest 2018, where panelists said it can be an opportunity to bake privacy into the discovery workflow. It’s a radical concept, but stay with me here. Perhaps, in spite of the extremely large potential fines and the headaches it has caused IT teams worldwide,
06Sep2018

Why Now is the Perfect Time to Take Control of Your eDiscovery

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By ZyLAB eDiscovery is one of those tasks nearly everyone is happy to hand off to someone – anyone – else. “It’s too complicated,” they say. “Too expensive! And too time-consuming!” Granted, all that used to be true. But if you haven’t looked at eDiscovery lately, you may have missed how it’s evolved.
04Sep2018

The Most Important eDiscovery Cases of 2018 (So Far)

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By Casey Sullivan 2018 has been an unusually quiet year for eDiscovery cases. Usually by this point, we would have at least a few blockbuster cases, with big sanctions and big controversy to make a big deal over. While we have had a few big fines, the jurisprudence in eDiscovery seems to have settled down greatly since the enactment of the 2015 amendments to the discovery rules in the Federal Rules of Civil Procedure.
11Jun2018

6 Keys to Consider When Evaluating eDiscovery Review Platforms

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By Kelly Twigger Technology of review software is constantly evolving, and many platforms are moving to the cloud. Firms that have purchased behind-the-firewall solutions are re-evaluating their expenditures, and in-house departments are looking to leverage their own tools to reduce costs with outside counsel. Firms that have had Summation and Concordance in the past are reassessing their options.
09Apr2018

The Dark Side of Cloud Computing

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By Sharon Nelson and John Simek We have said for many years that the cloud will generally protect a law firm’s data better than the law firm would itself. As more and more law firms adopt Microsoft Office 365, thereby moving to the cloud, we have come to the conclusion that a few words of caution are in order when law firms entrust their data to the cloud.
09Jan2018

Videoconferencing vs. Web Conferencing

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Videoconferencing vs. Web Conferencing Fortunately, attorneys have options when it comes to deciding the best way to make a deposition accessible and efficient for all parties involved. Videoconferencing and web conferencing are two great options for achieving these goals. Key Differences between Videoconferencing and Web Conferencing Web conferencing assists the taking of depositions with attorneys and/or the witness in remote locations from each other.
08Jan2018

A Quick Reference Guide to Understanding eDiscovery Pricing

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By Kelly Twigger One of the biggest challenges in purchasing ediscovery services is trying to make an apples-to-apples comparison between providers, platforms, and services, including their pricing. It’s a feat that’s next to impossible. Buying ediscovery services is a lot like buying a car — when you walk away from the deal,
08Jan2018

Why I Love Predictive Coding: Making Document Review Fun Again

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By Ralph Losey Many lawyers and technologists like predictive coding and recommend it to their colleagues. They have good reasons. It has worked for them. It has allowed them to do e-discovery reviews in an effective, cost efficient manner, especially the big projects. That is true for me too, but that is not why I love predictive coding.
13Nov2017

Foreign Language Document Review

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The first foreign language lawsuit I worked on as an attorney was an international price fixing case with defendants in Japan and Germany. Boxes of printed discovery were produced in Japanese. This raised serious issues of how to find documents that supported our causes of action and prepare for depositions. Fast forward to present day:  Parties might not be producing boxes of paper—in lawsuits with products made in the United States but with overseas parent companies—and instead hard drives of data in multiple languages.
10Oct2017

What to do After an Inadvertent Production

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The inadvertent production of privileged discovery can be a significant challenge both legally and technically. Was the privilege waived with the inadvertent production? How can the production be technically clawed back? The answers to these questions and best practices are explained in my new guest post What to Do After an Inadvertent Production: Clawback Requirements of Federal Rule of Evidence 502 on the Everlaw Blog.
11Sep2017

Time To Change Your eDiscovery Mindset

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Well, it’s happened.  ATL has asked me to write about ediscovery, a topic that many lawyers are tired of hearing about but continues to loom large. Electronic discovery is the most substantive change to the practice of law in more than 100 years, yet many relegate it to the backseat by equating it simply with data and deeming it a litigation support issue.
04Aug2017

eDiscovery Processing: Seven Tips for Reducing Stress (and Spend)

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In eDiscovery good processing decisions early on can make a big difference. The collection is done and you finally have the data. Now what?  What’s the best way to tackle processing without breaking a sweat, the bank, or your timeline? Alongside early case assessment (ECA), this phase of eDiscovery presents an opportunity to undertake a defensible reduction of data and pass along only the material that will ultimately be necessary to review. 
06Jul2017

Five Tips to Avoid Mistakes in Electronic Document Review

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These tips are based on a long life of litigation legal practice, including thousands of document reviews going back to 1978.  I have seen hundreds of mistakes over the years, especially in the last decade when my work as a lawyer has been limited to electronic discovery.  Many of these blunders were made by “the other side.”  Some were funny and made me smile. 
12Jun2017

E-Discovery: A Primer for Litigators

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12Jun2017

Stop Equating eDiscovery With Data. It’s Not That Simple

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There’s a fairly common theme to those who dislike electronic discovery:  It’s too expensive and just ramps up the cost of litigation. I do understand that costs of discovery are more upfront now, but I would argue that the “enormous costs” of discovery are because lawyers still aren’t doing it right.  
08May2017

Rule 26 and How it Applies to Electronically Stored Information

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08May2017

What Lawyers are Really Asking About eDiscovery Behind Closed Doors

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I recently participated in the San Francisco Exchange program put on by Today’s General Counsel, along with Bob Little, a marketing colleague at Advanced Discovery.  While I typically learn something of interest at industry events, the insights from this meeting were a bit more surprising.  First, a little background. The Exchange is a remarkable annual program held in six cities around the country;
20Mar2017

Court Rules that Proportionality and Cooperation are Essential in Resolving E-Discovery Disputes

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Magistrate Judge R. Steven Whalen agreed with UPS that it did not have to spend six months and $120,000 to recover data stored on backup tapes that may not be relevant to the case if UPS prevails in its efforts to limit the scope of the putative class’s claims.  Instead, the Court directed the parties to share information and agree upon an appropriate methodology for statistical sampling.
20Mar2017

Threat of Destruction Justifying Third Party Preservation of ESI

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Companies have a strong interest in making sure proprietary information does not go to competitors. Warning signs are employees who email confidential information to their personal accounts and then delete the sent email from their work email account. The following is one such case where third party email providers were ordered to preserve email created by the Defendants to avoid the destruction of relevant ESI.
23Jan2017

2017 Ediscovery Case Law: Ready for a New Year?

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Emails, documents, spreadsheets, presentations, voice mail, text messages, social media posts. When civil litigation matters and internal investigations strike, all of these data types are ripe for discovery. How is ediscovery evolving in 2017? If you are regularly involved in the exchange of electronic documents in discovery – ediscovery – then you know that the legal landscape in this area is in a constant state of flux. 
18Dec2016

Key Takeaways from the Sedona Conference Commentary on Defense of E-Discovery Process

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The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) has proposed a set of principles and practical guidance for the eDiscovery process in its recent publication, “Commentary on Defense of Process:  Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process” (available for download here).  The Commentary seeks to address what parties can do to avoid,
16Nov2016

Five Discovery Trends to Watch in 2016

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The most recent attempt to reduce scope and cost of discovery is reflected in the amended Federal Rules of Civil Procedure that became effective December 1, 2015. While the new amendments meaningfully focus on reducing costs associated with high volumes of data, there are other emerging concerns which continue to push the boundaries of reasonableness,
18Oct2016

Cross-Matter and Vendor Message ID

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At last week’s ILTACON in Washington, D.C., Beth Patterson, Chief Legal and Technology Services Officer for Allens in Sydney, asked a panel why e-discovery service providers couldn’t standardize hash values so as to support identification and deduplication across products and collections.  If they did, you could use work from one matter in another. 
18Oct2016

IT and Legal Walk into a Bar: Why Strong Interdepartmental Relationships are a Must in E-Discovery

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The E in E-Discovery requires expertise in tech as well as law, and the most successful in-house legal teams bring those disciplines together. Legal professionals become more technology savvy. IT team members begin to understand the e-discovery process and how to help Legal preserve and collect the required data. But in order to reach the highest levels of efficiency,
20Sep2016

Witnesses, Know When to Use Your Own Words

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I frequently travel around the country to meet with attorneys in order to help them get witnesses get ready for deposition. As we share our best practices, I will sometimes notice that there is a difference of opinion over how much or how little a well-prepared witness ought to say.
20Sep2016

What is Contextual Diversity and Why Is It Important in TAR?

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Contextual Diversity is an exploratory tool found only in the Insight Predict system that runs automatically as part of a technology-assisted review project. Many TAR systems concentrate exclusively on relevance feedback, that is, giving you the unreviewed documents predicted to be the most relevant. But Insight Predict’s Contextual Diversity system also adds in some exploratory documents to help make sure you’ve looked into all the corners of your document collection,
23Aug2016

E-Discovery Travel Guide Prepares Legal Teams for Adventure

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The e-discovery process is definitely a trip. With each new matter comes new challenges, variables, data types, and key players—both inside and outside of your organization. And like a road trip, it can be a nightmare or a grand adventure. What it boils down to is the perfect mix of planning,
23Aug2016

Avoiding the Technical Mistakes When Drafting Written Discovery

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Recently I received a telephone call from an attorney wanting to discuss whether opposing party’s objections to her special interrogatories had any merit.  Listening to the list of objections, it was clear that the opposing party had failed to assert the objections in good faith, as the objections included a General Objection preamble,
26Jul2016

If You Don’t Know the Answer, Then That’s Your Answer

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As the question hangs in the air, you can see the tension working on the witness. Her face screws up, she looks at the ceiling, tenses her shoulders, and delays. As you call for a time-out in the preparation session, the witness blurts out, “What should I say? I don’t know the answer!”
26Jul2016

Some Things Don’t Need to be Discovered. Protect Sensitive Data in Discovery.

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Today’s corporate information systems are awash with highly sensitive data. Whether it’s personally identifiable information (“PII”), personal health information (“PHI”), financial and payment information, intellectual property and trade secrets, source code—the list goes on—sensitive information exists in virtually every collection of data. It’s found in expected locations, like organized, well-managed databases;
28Jun2016

Proportionality and Labeling ESI Productions

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The new Amendments to the Federal Rules of Civil Procedure are bringing new voices to discuss eDiscovery. Magistrate Judge Nina Y. Wang issued a thoughtful opinion of the new Rules in Kissing Camels Surgery Ctr., LLC, v. Centura Health Corp. (D.Colo. Jan. 22, 2016, Civil Action No. 12-CV-03012-WJM-NYW) 2016 U.S. Dist.
28Jun2016

Embracing New Computer Forensics Paradigms

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Computer forensics is a fast-changing industry. New mobile devices, increased use of the cloud to store data, and social media all present new challenges to collecting data. It’s not enough to limit a data collection to files and emails anymore. Smartphones, tablets, email, instant messaging platforms, traditional file shares, and more all need to be included in a collection.
25May2016

When Big Data and Litigation Collide

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Let’s face it, today we’re living in a world of “big data” and bigger data.  Like it or not, the world is now data driven, fueled by an ever-evolving variety of data sources. For the most part, we’ve become inured to it — “big data” is just part of the social vocabulary now.
19Apr2016

Why I Love Predictive Coding

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Making document review fun with Mr. EDR and Predictive Coding 3.0 Many lawyers and technologists like predictive coding and recommend it to their colleagues. They have good reasons to do so. It has worked for them. It has allowed them to do e-discovery reviews in an effective, cost efficient manner. That is true for me,
22Mar2016

Turning on the Lights in a Dark (Data) Room

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At breakneck speed, businesses and individuals are amassing huge volumes of disparate and obsolete data—data that has long gone “dark” within an organization. Dark data is the neglected data accumulated by an organization during regular business activities—the aging information, untouched archives, ancient web log files, old records of email correspondence. This data is intermingled with highly valuable and sometimes sensitive business information,
22Mar2016

Don’t Free Fall on the Duty to Preserve

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The duty to preserve is a tricky beast. Determining when a party “knew or should have known that litigation was imminent” is often a free fall into analyzing the facts of when a party had notice of a lawsuit. There are times when it is very obvious that a party should have ejected and pulled the ripcord on not destroying any evidence.
23Feb2016

The Fourth Generation of eDiscovery Offerings is Upon Us

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If you read this blog regularly, you know that we’re big admirers of Rob Robinson’s Complex Discovery site, from his software and services “mashup” to his running 14-plus year list of mergers, acquisitions, and investments in the eDiscovery industry.  Now, Rob provides a generational breakdown of eDiscovery technology offerings, giving organizations out there useful information to differentiate offerings in the eDiscovery marketplace.
23Feb2016

Cutting Costs and Mitigating Risk with Information Governance

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The New Year brings fresh starts, and most of us, after a season of giving and receiving parties and celebrations, are feeling the need to take stock and streamline our lives. In the bestselling book, The Life-Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing, author Marie Kondo’s main tenet in her approach to decluttering is to discard everything that does not “spark joy”
19Jan2016

Databases in Discovery

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Five years ago, I wrote The Luddite Litigator’s Guide to Databases in E-Discovery to accompany a lecture on the subject at the 2010 Georgetown Advanced E-Discovery Institute.  When I went looking for source material for the article, I was struck by how little there was.  Databases hold most of what we seek in discovery;
22Dec2015

Altitude Woes: Avoiding the Dangers of BYOC in EDiscovery

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In a recent article, my Kroll Ontrack colleague, Michele Lange, discussed the ominous presence of the Bring Your Own Cloud (BYOC) movement within corporations. As with all new technologies, the BYOC movement has its advantages and disadvantages. On one hand, by allowing employees to use personal cloud storage systems, there is an increase in efficiency,
22Dec2015

Proportionality in Asymmetrical Discovery

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The Plaintiffs and Defendants in an SEC case highlight the importance of proportionality between asymmetrical parties. In such cases, one side has all of the electronically stored information for discovery requests; the other side does all the requesting. However, the smaller party can have an extremely high burden reviewing any produced ESI,
11Dec2015

Client Deposition Preparation

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Over my 30+ years of working for lawyers, I have seen many documents used to prepare witnesses for deposition. I decided to write one that would be easily understood by the typical lay witness. This article is not legal advice. It is a compilation of advice given by various attorneys,
17Nov2015

Preparing for the eDiscovery Wave of the Internet of Things

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Among the recent developments in the eDiscovery industry, one of the most anticipated trends is the Internet of Things (IoT). The IoT has been in the news for a few years now. But for the eDiscovery world, 2014 marked the IoT’s emergence as a hot topic. This is due in large part to the increasing number of interconnected devices,
17Nov2015

Deduplication: Why Computers See Differences in Files that Look Alike to You

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An employee of an e-discovery service provider asked me to help him explain to his boss why deduplication works well for native files but frequently fails when applied to TIFF images.  The question intrigued me because it requires we dip our toes into the shallow end of cryptographic hashing and dispel a common misconception about electronic documents.
20Oct2015

Wearable Tech Data as Evidence in the Courtroom

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When I first started writing about the importance of social media to lawyers in the mid-2000s, it was an uphill battle to convince lawyers that social media should matter to them. It wasn’t until social media began cropping up in cases a few years later, both as the medium for the commission of crimes and as evidence in courtrooms,
20Oct2015

Sorting Out the Real Cost and Value of E-Discovery Technology

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There has been a bit of talk lately in the e-discovery echo chamber about fixed-price models for processing, hosting, review, and productions. The purported goal of this discussion was to create a stir and drum up business. Yet conspicuously absent from this entire discussion was talk of total cost, aka value. 
22Sep2015

Addressing the Continuing Challenges of Mobile Devices

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Organizations should develop a plan to tackle the data security, information retention, and e-discovery problems arising from mobile devices. The challenges associated with mobile device use continue to be splashed across the headlines. This year alone has seen various reports on mobile mishaps involving Samsung, Starbucks, the former U.S. Secretary of State,